The Oral Argument in People of the State of New York v. Trump

 

 

New York v. Trump was the case where Trump was convicted by a jury of violating NY’s conspiracy and public records law. Judge Merchan was the trial court judge. Trump took an appeal from NY’s state trial court to NY’s intermediate court of appeals—also a state court. (Albeit, Trump sought and continues to seek to remove the case into the federal court system.) The briefs are here: Seth Barrett Tillman, ‘People of the State of New York v. Trump: Briefs and Other Filings (N.Y. App. Div. 1st Dep’t),’ New Reform Club (Nov. 12, 2025, 4:08 AM) (updated), <https://reformclub.blogspot.com/2025/11/people-of-state-of-new-york-v-trump.html>. I filed an amicus brief. Oral argument was on November 5, 2026. Here is a link: <https://www.youtube.com/live/pP-Zy1jdgmE>. My impression was that this panel was well prepared and informed.

 

I am not going to predict which party will prevail. But I will say that Bragg’s attorney (Steven Wu) said: “What the prosecution was considering was the fact of a FECA [Federal Election Campaign Act] violation among many other potential violations and the jury was then drawing from the fact of that violation an inference ….” (at 45:30ff) (emphasis added). Where, as here, a statutory offense has an element which is a predicate of that offense, and that predicate element is itself a legal violation or predicate offense, then there can be no conviction absent jury unanimity with regard to every element of that predicate offense. The prosecutor cannot escape Amendment V due process requirements and Amendment VI jury-unanimity requirements merely be recasting the predicate offense as a “fact.” It is not a “fact”—it is a jury determination with regard to a legal violation or offense. If District Attorney Bragg and Steven Wu lose, I suspect, they will lose on this point.

Seth

Seth Barrett Tillman, ‘The Oral Argument in People of the State of New York v. Trump,’ New Reform Club (Nov. 9, 2026, 7:21 AM), <https://reformclub.blogspot.com/2026/11/the-oral-argument-in-people-of-state-of.html>;